Delhi District Court
State vs Habib Khan on 29 February, 2024
IN THE COURT OF MS. MANISHA KHURANA KAKKAR,
ADDITIONAL SESSIONS JUDGE (FTC - 01) (SOUTH), SAKET,
NEW DELHI
SC No. : 312/2021
FIR No. : 31/2009
PS : Ambedkar Nagar
State Vs. : Habib Khan Ors.
JUDGMENT
(a) Name of complainant : Ct. Vikram Singh
(b) Name, parentage & : (1) Habib Khan address of accused(s) S/o Sh.Hamid Khan R/o S-74/49, Harijan Basti Jhuggi Camp, Khanpur, New Delhi (2) Irfan Siddiqui S/o Sh.Sattar Siddiqui R/o L-II/61, Madangir New Delhi (3) Rishi S/o Sh.Suresh R/o S-75/51, Harijan Camp Jhuggi, Khanpur New Delhi (4) Hamid Khan S/o Sh. Sahjad Khan R/o S-74/49, Harijan Camp Jhuggi, Khanpur New Delhi (5) Islam S/o Sh.Hamid Khan R/o S-74/49, Harijan Camp Jhuggi, Khanpur New Delhi FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.1 of 27 (6) Anil @ Nikki S/o Sh.Suresh R/o S-74/31, Harijan Camp Jhuggi, Khanpur New Delhi (7) Sabbir Ali S/o Sh.Ahmed Ali R/o S-73/54, Banjara Camp Jhuggi, Khanpur New Delhi (8) Tarjon S/o Sh.Deepak R/o S-74/51, Harijan Camp Jhuggi, Khanpur New Delhi (9) Deepak (Expired) S/o Late Sh. Anant Ram R/o S-74/51, Harijan Camp Jhuggi, Khanpur New Delhi (10) Ranjit @ Toni S/o Sh. Hari Ram R/o S-75/25, Harijan Camp Jhuggi, Khanpur New Delhi (11) Subhash @ Karam S/o Sh.Dharam Pal Singh R/o H-28, Dakshinpuri, New Delhi (12) Sunil Kumar S/o Sh. Ram Avtar R/o S-74/219, Harijan Camp Jhuggi, Khanpur New Delhi (13) Kamal S/o Sh. Satya Narain R/o S-74/36, Harijan Camp Jhuggi, Khanpur New Delhi (14) Jeetu S/o Sh. Sabir R/o S-74/216, Harijan Camp Jhuggi, Khanpur New Delhi (15) Iccha Ram S/o Sh. Prem Singh R/o A-64, Khanpur, New Delhi FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.2 of 27
(c) Offence complained off : U/s 143/147/148/149/332 r/w 149/333 r/w 149 IPC.
(d) Plea of accused : Pleaded not guilty (e) Final order : Convicted (f) Date of such order : 29.02.2024 Date of Institution : 04.08.2009 Date of conclusion : 11.01.2024 of final arguments Date of Judgment : 29.02.2024 BRIEF FACTS :
1. It is the case of the prosecution that on 05.02.2009 at about 12:20 AM(mid Night) at Harijan Camp Jhuggi, accused persons namely Habib Khan, Irfan Siddiqui, Rishi, Hamid Khan, Islam, Anil @ Nikki, Sabbir Ali, Tarjon, Deepak (expired), Ranjit @ Toni, Subhash @ Karam, Sunil Kumar, Kamal, Jeetu and Iccharam formed an unlawful assembly and used force and violence against the police persons namely Ct. Vikram, Ct. Braham Singh, Ct. Balram, Ct. Mohender, Ct. Hemant, Ct. Mantu Kumar. As per the allegations against the said accused persons, they were armed with 'danda' and 'churra' i.e. deadly weapon and they voluntarily obstructed the aforesaid police officials in discharge of their public function. It had also been alleged that the said accused persons caused hurt to Ct. Montu Kumar, Ct. Balram, Ct. Mahender Singh and Ct. Hemant, and also voluntarily caused 'grievous' hurt to Ct. Vikram Singh, Ct. Braham Singh. Consequently, Charge-sheet for the offence U/s 143/147/148/149/332 r/w 149/333 r/w 149 IPC was filed against all accused persons.
After the compliance of section 207 Cr.P.C, matter was committed to the Court of Sessions by Ld. MM vide order dated 02.05.2011.
FIR No.31/2009PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.3 of 27 Charge:-
2. On the basis of material placed on record by the prosecution, charge was framed against accused persons i.e. Habib Khan, Irfan Siddiqui, Rishi, Hamid Khan, Islam, Anil @ Nikki, Sabbir Ali, Tarjon, Deepak(expired), Ranjit @ Toni, Subhash @ Karam, Sunil Kumar and Kamal for the offences punishable under Section U/s 143/147/148/146/332 r/w section 149 IPC and section 333 IPC r/w section 149 IPC vide order dated 25.10.2023 and against accused Jeetu and Iccharam for the offence u/s 143/147/148/149/332 r/w section 149 IPC vide order dated 19.10.2013 passed by Ld. Predecessor, to which they pleaded not guilty and claimed trial. However, it appears that there was an inadvertent typographical error in the charge and section 186 IPC was stated to be section 146 IPC. The same is hereby deemed to be section 186 IPC instead of section 146 IPC.
Prosecution Evidence :-
3. In order to bring home the guilt of accused, prosecution had examined 12 witnesses in the prosecution evidence i.e. PW1 Ct. Mahender, PW2 HC Mantu, PW3 HC Rambir, PW4 HC Hemant, PW5 ACP Dr. Ram Gopal Naik, PW6 ASI Nawab Khan, PW7 Ct. Braham Singh, PW8 Ct. Vikram Singh, PW9 Ct.
Balram, PW10 Dr. Kanika Chauhan, PW11 SI H.P. Gulia, PW12 Insp (Retd) Desh Raj.
Summary of prosecution evidence :-
4. PW1 Ct. Mahender :- He deposed that on 05.02.2009 at about 12:15 midnight, duty officer gave information to him that an unknown person had informed at the PS that two persons who were wanted in 'Hathi' murder case were hiding themselves in Harijan Camp, Khanpur. As per his testimony, duty officer gave the said information to him as well as to Ct. Vikram, Ct. Mantu, FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.4 of 27 Ct. Balram, Ct. Hemant, Ct. Behram via telephone. He further testified that in pursuance of the same, they reached the Harijan Camp, Khanpur and IO/SI H.P Guria also reached there after about 5 to 7 minutes.
5. PW1 Ct. Mahender further testified that the secret informer met them and pointed towards a Jhuggi and informed them that the persons who were wanted in the said case were inside the 'Jhuggi' and thereafter, the secret informer left from the spot. He further deposed that they all reached at the Jhuggi number S 74/49, Harijan camp, Khanpur and saw that 8 to 10 boys were sitting inside the said 'Jhuggi'. PW1 Ct. Mahender further stated that they asked the said boys to disclose their names and addresses, however, those boys started making noise.
He further stated that in the meantime, one person from the aforesaid persons said to his other associate 'Deepu Tarzan or Islam Dekh Kya rahe ho Police Walo ko Sabak Sikha Do' and thereafter, the said 8 to 10 boys started collecting the other Jhuggi persons and they all started attacking the police party with 'Lathi', 'Danda' and stones, due to which, they all received injuries.
6. PW1 Ct. Mahender further stated that one person who was armed with a knife ran towards PW8 Ct. Vikram, on which PW8 Ct. Vikram took out his service pistol, in order to scare the mob and save himself.
7. PW1 Ct. Mahender further stated that there was a scuffle in the mob and Ct.
Vikram fired from his service pistol accidently. The said witness correctly identified all the accused persons present in the court as the persons who had attacked the police party.
FIR No.31/2009PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.5 of 27
8. In his cross-examination, he deposed that he had left the police station at about 12:15 midnight. He further deposed that he did not recollect the DD number, however the DD entry and their departure was recorded. He further testified that all the police officials were in uniform and PW1 Ct. Vikram had a weapon . He further deposed that they all went to the spot on their personal vehicle i.e. bikes. As per his testimony, the said 'Jhuggi' was about 10 x 10 feet. He, however, did not know whether the said 'Jhuggi' belonged to accused Islam or that his family was residing in the same. He specifically denied the suggestion that he along with the other police officials were in a drunken state, when they went to the 'Jhuggi' of accused Islam. He also denied the suggestion that accused Islam was dragged by them forcibly from his 'Jhuggi'. He further denied the suggestion that constable Vikram had fired at accused Islam on his refusal to come with Police.
9. PW2 Ct.Mantu Kumar :- He also deposed that on 05.02.2009, he had received an information that two persons who were wanted in 'Hathi' Murder case would be apprehended from 'Jhuggi' at Harijan Camp, Khanpur. He further deposed that the Duty officer had informed him, Ct. Hemant, Ct. Brahm, Ct. Mahender, Ct. Balram and Ct. Vikram about the said information and they were directed to reach at Harijan Camp Khanpur. He further stated that all the said police officials and Sub-Inspector Guria also reached there. He further testified that the secret informer met them and pointed out towards Jhuggi No. S-74/49 and told them that the persons who were wanted in the said case, were sitting inside the 'Jhuggi'. He also reiterated that about 8-10 boys were sitting in the said 'jhuggi' and that one person from them started shouting and said to accused Jeetu and Tarzan and two other persons that "police walo ko sabak sikhana hai". As per his testimony, thereafter those 8-10 boys and FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.6 of 27 other persons from the nearby 'Jhuggi' came armed with dandas and 'chhuras' and attacked on the police party. He also stated that one person armed with 'chhura' ran towards Ct. Vikram, who took out the service pistol, in order to scare him. He further testified that there was scuffle (dhakka mukki) in the mob and in that process Ct. Vikram fired accidentally. He further deposed that five pieces of bricks and three pieces of cemented stone and one piece of stone were identified by the witness vide Ex. P-5. The said witness identified accused Sabir, Habib, Islam and Hamid in the court as the person who had attacked the police party. However, he could not identify the remaining accused persons on the ground that as it was night time, when the incident had occurred.
10. The said witness was, therefore, cross-examined by Ld. Addl. PP for State on the ground that he had suppressed material facts. He affirmed the suggestion that five persons namely Habib Khan, Hamid Khan, Suraj, Rishi and Irfan were apprehended by the police from the said 'Jhuggi' and he identified them as the persons who had attacked the police party. He further testified that accused Rishi, Irfan, Habib Khan and Hamid Khan were arrested vide Ex.PW2/A, Ex.PW2/B, Ex.PW2/C and Ex.PW2/D and their personal search was conducted vide Ex.PW2/G, Ex.PW2/E, Ex.PW2/F and Ex.PW2/H.
11. In his cross-examination conducted by Ld counsel for accused, PW2 Ct. Mantu deposed that DD entry regarding their departure was made when they had left the PS, however, he did not remember the number of the same. He deposed that the distance between PS and spot was about 1.5-2 Km and they reached at the spot at about 12:15/12:30 mid night. He further testified that when they reached near the 'Jhuggi', they saw the door of the 'Jhuggi' was closed and Ct.
FIR No.31/2009PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.7 of 27 Vikram asked the occupants to open the door. However, he was not aware that the 'Jhuggi' belonged to accused Islam. He, however, affirmed the suggestion that the family members of accused Islam lived in that Jhuggi. He denied the suggestion that on 05.02.2009 all six constables went to S-74/49,Khanpur in a drunken state. He further denied the suggestion that accused Islam was being taken forcibly or that since accused Islam resisted/refused for the same, PW8 Ct. Vikram had fired upon him. He further denied the suggestion that in order to save themselves from legal punishment, they had inflicted injuries upon themselves and went to Batra hospital.
12. In his cross-examination conducted by Ld counsel for accused Sunil, he deposed that he did not know the FIR number of 'Hathi' murder case, nor he did he know the name of the IO of that case. He further testified that all the constables had their respective weapons. He denied the suggestion that Ct. Vikram had asked him to tear his uniform in order to make a false case. He further denied the suggestion that the injuries were self inflicted or that uniform was torn by themselves. He further denied the suggestion that they had not gone to the said 'jhuggi' on that day in order to apprehend the persons who were wanted in 'Hathi' wala case.
13. PW3 HC Rambir :- He deposed that on 05.02.2009 while he was on duty in PS from 12 mid night to 08 AM, an information was received through telephone that some persons wanted in 'Hathi' murder case were present in Harijan Camp. He further deposed that he sent the staff to the spot. As per his testimony, at about 05:20 AM, Ct. Krishan Kumar brought a rukka sent by ASI Nawab Khan and on the basis of the same, he recorded the present FIR. The FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.8 of 27 copy of FIR was placed on record as Ex. PW3/A. As per his testimony, further investigation was marked to SI Hari Prakash.
14. In his cross-examination conducted by Ld counsel for accused, he, however, deposed that the departure entry of IO and Constables were made, but he did not recollect the said DD numbers. He denied the suggestion that he had not received any such information or that he had made DD number 45-A (Mark A) at the behest of IO, in order to save the Constables.
15. He deposed that he did not remember if any call was received from 100 number from the said address i.e. S-74/49. He also denied the suggestion that the said FIR and DD entries were ante dated and were manipulated.
16. PW4 HC Hemant :- In his examination in chief, he deposed on the same lines as the aforesaid witness during his testimony. He also identified all the accused persons as the perpetrator of the said offence.
17. In his cross-examination conducted by Ld.Addl. PP for State, PW4 HC Hemant deposed that after getting himself discharged from the hospital, he went back to police station and took medical rest. He denied the suggestion that no such incident took place or that he was deposing falsely. He affirmed the suggestion that stones and dandas were not seized in his presence.
18. In his cross-examination conducted by Ld counsel for accused persons he deposed that he did not have any weapon at the time, however, he was carrying a 'Danda'. He did not know what weapon the other constables had with them. He further testified that one cot was lying inside the 'Jhuggi' and one 'Dari' FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.9 of 27 was also lying on the floor and the accused persons were sitting on the cot and on the floor. He further deposed that he did not know who was the owner of the 'Jhuggi', nor he made inquiries about the same. He further testified that he did not know whether 'Jhuggi' belonged to accused Islam. He denied the suggestion that no senior officer had accompanied them or that all the police constables were in a drunken state. He also denied that they were taking accused Islam forcibly from there. He further denied that when he resisted, PW8 Ct. Vikram fired upon him. He also denied the suggestion that all constables had cooked up a false story in order to save their own skin. He, also denied that accused Anil @ Niki was not with accused Islam at the relevant time. He also did not concede that one Nasruddin had made a call at 100 number on 05.02.2009 at about 11:15 PM since accused Islam had received a bullet injury.
19. PW6 ASI Nawab Khan :- He deposed that on 04/05.02.2009, he received a DD No. 48A (Ex. PW6/A) at about 12:47 AM, regarding a quarrel at Harijan camp, Khanpur. He further deposed that he along with constable Krishan reached at Harijan Camp Khanpur, where he came to know that the quarrel had been taken place between the police party and public persons and the injured persons had been taken to AIIMS Trauma Centre. As per his testimony, on reaching AIIMS Trauma Centre, he found that accused Islam and Hamid were admitted. He collected the MLC of both the injured persons, however, on asking both the injured persons, they refused to give their statement as they were not in a fit state of mind. Thereafter, he reached at Batra Hospital where the injured police officials had been taken for treatment and found Ct. Vikram, Ct. Brahm Singh, Ct. Balram, Ct. Mahender, Ct. Hemant and Ct. Montu admitted there. He collected the MLCs of said police officials and found them FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.10 of 27 'fit for statement'. The said witness correctly identified accused Islam and Habib.
20. In his cross-examination conducted by Ld. counsel for accused namely Kamal, Subhash, Deepak, Tarjan, Anil, Habib, Irfan, Islam, Sunil and Hamid khan, he deposed that he reached at the spot within 10 minutes i.e. about 1:00 AM and he reached at Trauma Centre between 1:30 and 1:35 AM alongwith Ct. Krishan. He further stated that he had not recorded the statement of other witnesses except complainant, as the case was handed over to PW11 SI H.P. Gulia. He denied the suggestion that he had not recorded the statement of injured persons in Trauma Centre, in order to save the police officials and to implicate the accused persons or that he was deposing falsely being a police official.
21. PW8 Ct. Vikram Singh :- The said witness also deposed on the same lines as the aforesaid witnesses. He also stated that during the aforementioned incident, accused Sabir had incited the other accused persons by saying in a loud voice 'Jeetu, Deepu, Tarzon, Islam in police walo ko sabak sidha do'. He also testified that after the same, accused persons attacked them with 'dandas' and they also called other neighbours from the 'jhuggies' by raising a alarm. He further deposed that accused Sabir, Islam, Jeetu, Tarzon, Deepak, Kamal, Subhash, Anil @ Nikki, Sunil, Ranjit @ Tony, Habib and Hamid started pelting stones on them and attacked them with 'dandas'. He also reiterated the fact that 3-4 persons had caught hold of him and one person attacked him with a knife, however, he saved himself and when he was attacked for the second time with a knife, he was also beaten up by the aforesaid persons, therefore, he took out his service pistol and in the scuffle, he inadvertently fired from the same. He FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.11 of 27 also conceded that he later on came to know that accused Islam had suffered a injury due to firing from the pistol. However, he also testified that all the police officials had sustained injuries during the said incident. He correctly identified all the accused persons in the court as the perpetrator of the said offence. He also deposed that he had lodged a complaint with the police regarding the said incident vide Ex. PW6/B and the broken bricks/stones, lathis, dandas were lifted from the spot and were seized in his presence by the IO.
22. In his cross-examination, PW8 Ct. Vikram conceded that he had not disclosed about the physical description of the accused persons to the IO in his complaint. He further testified that he was discharged from the hospital on the same day at about 5-6 am. He however, did not remember the DD number vide which they had left from the PS for the spot. He also conceded that he did not inform the SHO and Addl. SHO on the phone regarding their departure from the PS to the spot. He further stated that he did not make any inquiry regarding the ownership of the 'jhuggi' before or after the incident and he also did not know whether the 'jhuggi' belonged to accused Islam. He denied the suggestion that all the said police officials were in a drunken condition and had forcibly entered into the 'jhuggi'. He also denied the suggestion that they had misbehaved with the family of accused Islam. He further denied the suggestion that when accused Islam raised an objection to the same, he was shot at or that the injuries were self inflicted by the police officials. He also denied the suggestion that accused Sunil was not present at the spot of occurrence on the day of the incident and was present with his wife who was hospitalized.
FIR No.31/2009PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.12 of 27
23. Prosecution witnesses i.e. PW7 Ct. Braham Singh and PW9 Ct. Balram also deposed on the same lines as the aforesaid witnesses.
24. PW11 SI H.P. Gulia :- He deposed that on 05.02.2009 he received DD No. 46- A regarding quarrel at about 12:15 AM and thereafter, he alongwith Ct. Mahipal reached at Harijan Camp, Ambedkar Nagar, where he came to know that a quarrel had been taken place between police officials and 'Jhuggi' dwellers. He further testified that when he reached at the spot, injured persons had already been taken to Batra hospital. Thereafter, Ct. Krishan Kumar handed over a copy of FIR and original rukka of the present case to him in the hospital and ASI Nawab Khan handed over a sealed parcel to him, which he took into possession vide seizure memo Ex. PW11/A. He further deposed that six injured police officials were found present at the Batra hospital and he took their MLCs from the hospital and recorded their statement in the hospital. He prepared site plan at the instance of Ct. Vikram vide Ex. PW11/B. He further deposed that some broken glasses, piece of brick and some wooden sticks and one wooden stick were found scattered at the spot and he seized the same vide Ex. PW8/A. He further seized the sticks vide seizure memo Ex. PW8/B. He further testified that crime team inspected the spot and he searched the accused persons in the surrounding jhuggies but they could not be found on the day despite best efforts. He further stated that he deposited the case property in the Maalkhana and he went to AIIMS hospital, where injured Hameed and Habib were not found present and their MLCs was prepared there as they both were treated there. He further deposed that he went to their 'jhuggi' but they were not found there.
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25. PW11 H.P. Gulia further testified that on 06.02.2009, he went to Batra hospital, where doctor gave him two MLCs of PW7 Ct. Bhram and PW8 Ct. Vikram whereby doctor had opined the nature of injury as 'grievous' on both the MLCs. Thereafter, he was added section 307/333 IPC on the directions of Senior officer.
26. He further deposed that on 08.02.2009, he alongwith additional SHO went to 'jhuggis' and apprehended accused Hamid, Habib, Suraj, Rishi and Irfan and accused and arrested accused Hamid Khan vide arrest memo Ex.PW2/D, accused Habib was arrested vide arrest memo Ex. PW2/C; accused Rishi was arrested vide Ex. PW2/A; accused Irfan was arrested vide Ex. PW2/B.
27. PW11 H.P. Gulia further testified that on 03.03.2009, he alongwith Insp.
Deshraj went to jhuggi Harijan Basti, where accused Islam and Anil were found and they were arrested vide Ex. PW8/C and Ex. PW8/D.
28. PW11 H.P. Gulia further deposed that on 17.03.2009, a secret information was received that accused Tarjan and Deepak were likely to reach near Batra Hospital and he alongwith PW8 Ct. Vikram reached there and at the instance of PW8 Ct. Vikram, he apprehended both the accused persons with the help of PW8 Ct. Vikram. As per his testimony, accused Tarjan was arrested vide Ex. PW8/H and accused Deepak was arrested vide Ex. PW8/G. He further deposed that he recorded the statement of PW8 Ct. Vikram.
29. PW11 H.P. Gulia further testified that on 05.04.2009 he received a secret information that accused Ranjeet was present near Ganda Nala, Ambedkar Nagar and he alongwith PW8 Ct. Vikram went near Ganda Nala at the instance FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.14 of 27 of PW8 Ct. Vikram and accused Ranjeet was apprehended by him vide arrest memo Ex. PW8/L. He further stated that on 08.04.2009, he received a secret information regarding accused Subhash, Sunil and Kamal that were present nearby 'jhuggis' at Harijan Camp and he alongwith PW8 Ct. Vikram and PW8 Ct. Mantoo reached there and they were arrested vide arrest memo Ex. PW8/P, Ex. PW8/M and Ex. PW8/O.
30. PW11 H.P. Gulia further testified that on 30.05.2009, he received information that accused Jeetu had surrendered before the court. Thereafter, he went to the concerned court alongwith PW8 Ct. Vikram and moved an application for interrogation of accused. He further deposed that he interrogated the accused and arrested him vide arrest memo Ex. PW11/D. He further testified that on 08.06.2009 accused Icharam had surrendered before the court and he again moved an application for interrogation of accused and arrested him vide arrest memo Ex. PW11/F.
31. In his cross-examination conducted by Ld counsel for accused Islam, Deepak, Sunil, Kamal, Habib Khan, Hameed, Irfan, Tarjan and Subhash, he deposed that when he reached at the spot nobody was there and he went to Batra hospital alone at about 01:00 PM.
32. In his cross-examination conducted by Ld counsel for accused Anil, Icharam and Sabir Ali, he deposed that the crime team had reached at the spot at about 01:30 AM and he left the spot at about 05 AM and reached at AIIMS at about 8 AM. He denied the suggestion that accused Islam was admitted in AIIMS hospital and that accused persons had been falsely implicated in the present case in order to save PW8 Ct.Vikram, who had fired upon the accused Islam.
FIR No.31/2009PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.15 of 27 He further testified that on 17.03.2009, he reached near Batra hospital at about 04-05 PM. He affirmed the suggestion that where accused Deepak and Tarjan were arrested, crowd and public persons were coming. He further affirmed the suggestion that there was a main gate of Air Force and that Security personnel were present there for 24 hours. He did not remember if he had recorded the statement of any security personal. He further denied the suggestion that the accused persons Deepak and Tarjan were lifted from their house and were falsely implicated in the present case.
33. PW12 Insp.(Retd) Desh Raj :- He deposed that on 07.02.2009, the case file was received for further investigation and on 08.02.2009 he alongwith PW11 SI H.P. Gulia, PW2 Ct. Mantu Kumar, PW8Ct. Vikram and other staff at the instance of secret informer reached at Harijan Basti, Bajara Camp, Khanpur at Jhuggi No. 74 and apprehended accused Habib Khan, Hamid Khan, Irfan Siddiqui, Rishi and CCL 'S' and they all were arrested vide Ex. PW2/A to Ex. PW2/D (except CCL).
34. The said witness was not cross-examined by Ld defence counsels.
35. PW10 Dr. Kanika Chauhan :- She deposed that on 05.09.2009, she was working as Resident at Batra hospital and on that day, six injured persons namely Vikram Singh, Mantoo Kumar, Brahm Singhm, Balram, Mahender Singh and Hemant came to the hospital with the alleged history of assault. She prepared the MLC of the aforesaid police officers vide Ex. PW10/A to Ex. PW10/F. FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.16 of 27
36. In her cross-examination she affirmed the suggestion that there was a cutting on the MLC of injured Brahm Singh and Vikram Singh. She, however, denied the suggestion that first the nature of injury was mentioned as 'simple' but later on it was mentioned as 'grievous' after making the said cutting. She denied the suggestion that she had given the aforesaid opinion under the influence of police.
37. Thereafter, prosecution evidence was closed and statement of accused persons were recorded U/s 313 Cr.P.C and concluded vide order dated 25.05.2023.
Defence Evidence :
38. All the accused persons chose not to lead defence evidence. Defence evidence was concluded vide order dated 18.08.2023.
Appreciation of Evidence and Findings :
39. It is the case of the prosecution that on 05.02.2009 at about 12:20 AM (mid night) at Harijan Camp Jhuggi, accused persons i.e. Habib Khan, Irfan Siddiqui, Rishi, Hamid Khan, Islam, Anil @ Nikki, Sabbir Ali, Tarjan, Deepak (since expired), Ranjit @ Toni, Subhash @ Karam, Sunil Kumar, Kamal, Jeetu, Iccha Ram formed an unlawful assembly and used force and violence against the police party comprising of Ct. Vikram, Ct. Brahm Singh, Ct. Balram, Ct. Mahender, Ct. Hemant, Ct. Mantu Kumar. It is also alleged that the said an unlawful assembly was armed with deadly weapons i.e. Danda and Chura and they obstructed the said police officials in discharge of their public functions and also caused hurt to Ct. Mantu Kumar, Ct. Balram, Ct. Mahender, Ct.
FIR No.31/2009PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.17 of 27 Hemant, while they caused grievous hurt to Ct. Vikram Singh and Ct. Bhram Singh.
40. In order to prove the same, the prosecution had examined the aforesaid members of the police party i.e. PW1 Ct. Mahender, PW2 Ct. Mantu Kumar, PW4 HC Hemant, PW7 Ct. Bhram Singh, PW8 Ct. Vikram Singh, PW9 Ct. Balram.
41. PW1 Ct. Mahender had categorically deposed that on the day of the incident i.e. on 05.02.2009 he was posted at PS Ambedkar Nagar and on that day at about 12:15 AM, duty officer informed him that an information was received at the PS through some unknown person that two persons, who were wanted in 'Hathi' murder case, were hiding themselves in Harijan Camp, Khanpur. As per his testimony, the duty officer had given this information to him and to Ct. Vikram, Ct. Mantu, Ct. Balram, Ct. Hemant, Ct. Bharam telephonically and in pursuance of the same, they had reached at Harijan Camp, Khanpur.
42. PW1 Ct. Mahender had further testified that in the meanwhile, PW11 IO H.P. Gulia also reached at the spot and the secret informer met them and pointed towards the 'jhuggi' where the wanted persons were hiding. He further testified that after receiving the said information, the secret informer left from the spot and the said police party reached at jhuggi no. S74/49, Harijan Camp, Khanpur and saw that 8 to 10 boys were sitting inside the same. He further testified that when they asked the said persons to disclose their names and addresses, the said boys started making noise and one person from them instigated the other persons by saying that "Deepu, Tarzan aur Islam dekh kya rahe ho police walo ko sabak sikha do". He further stated that thereafter, the said 8-10 boys started FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.18 of 27 collecting other 'jhuggi' persons and they all attacked the police party with lathi, danda and stone, due to which police officials sustained injuries. He also stated that one person was armed with a 'Churri' and he ran towards Ct. Vikram, therefore, in order to scare the said mob and to save himself, he took out his service pistol and fired a shot. The said witness identified all the accused persons as the perpetrator of the said offence.
43. PW4 HC Hemant also deposed on the same lines as the aforesaid witness and he also testified that the said police party had reached at Harijan Camp, in order to apprehend the persons wanted in 'Hathi' murder case and in pursuance of the information of a secret informer, they had reached at jhuggi no. S74/49, Harijan Camp, Khanpur where 8-10 boys were sitting. He had also testified that on seeing the police party, the persons sitting in the 'jhuggi' raised an alarm and one of the boys stated " Aaj inhe maza chakhate hai aur in police walo ko dekhte hai " and thereafter, they started pelting stones and attacked the police party with dandas and lathi's. He also testified that PW8 Ct. Vikram had a close encounter with one person who was armed with 'chura' and in order to save himself, he fired from his service pistol. He also corroborated the fact that all the aforementioned six constables received injuries in the said scuffle. He also identified all the accused persons present in the court by their faces, although, he did not know their names.
44. In fact, the other person in the said police party i.e. PW7 Ct. Brahm Singh also testified on the same lines and he also stated that when they reached at the said 'jhuggi', one of the boys instigated the others and he, in fact, named the said persons. He testified that one of the boys was shouting "Islam, Jeetu etc. dekh kya rahe ho lathi dande lo police walo ko sabak sikha do". Thereafter, they FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.19 of 27 attacked on the said police officials armed with lathi, danda and stones and also started beating them. He also affirmed that one of the boys had a knife in his hand and he ran towards Ct. Vikram, who took out his service pistol for controlling the crowd and fired the same. He, however, stated that he did not know whether any person had sustained injury or not. He also stated that had Ct. Vikram not taken out his service revolver to save them from the violent crowd who was armed with weapons like lathi, danda and knives, some mishap would have taken place. The said witness also correctly identified the accused persons present in the court. He specifically identified accused Deepak and Tarjan as the perpetrator of the alleged offence.
45. One of the most material witness in the present case i.e. PW8 Ct. Vikram Singh was also examined by the prosecution. He had also testified similarly as the aforesaid witnesses that on receiving information about persons involved in 'Hathi' murder case, the aforesaid police officials had reached the aforesaid jhuggi, where accused Sabir was present. As per his testimony, accused Sabir had instigated the other accused persons by saying " Jeetu, Dipu, Tarjan and Islam in police walo ko sabak sidha do" . He also testified that the said accused persons thereafter attacked them with dandas. He specifically testified that accused Sabir, Islam, Jeetu, Tarjan, Deepak, Kamal, Subhash, Anil @ Nikki, Sunil, Ranjeet @ Tony, Habib and Hamid had started pelting stones on them and that they also attacked them with dandas.
46. PW8 Ct. Vikram Singh further stated that 3-4 persons caught hold of him and one person attacked him with a knife, however, he managed to save himself and when the said person again attacked him, he took out his service pistol and fired from the same. He further stated that later on he came to know that FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.20 of 27 accused Islam had received injury on his leg due to firing of the said pistol. The said witness specially identified the accused persons present in the court as the perpetrator of the said offence. He also identified the case property i.e. broken bricks and stones which were lifted from the spot by the IO and were seized vide Ex. PW8/A. He also identified the other case property i.e. lathis and dandas which were lifted from the spot by the IO and were seized vide Ex PW8/B. He categorically deposed that he had made a complaint regarding the said incident at PS Ambedkar Nagar vide Ex. PW6/B.
47. The said testimony of the said witness is duly corroborated by complaint given at PS Ambedkar Nagar on 05.02.2009 i.e. Ex. PW6/B. Perusal of the endorsement on the said complaint shows that the information regarding the said incident was sent to the police station at 5:20 AM on 05.02.2009 and the alleged incident took place at 12:30 AM. Thus, there is no considerable delay in sending of the rukka/ information to the PS regarding the incident, which could have permitted any kind of prevarication or fabrication in the complaint given at PS Ambedkar Nagar.
48. Be that as it may, Ld counsel for the accused persons had tried to assail the testimonies of the aforesaid police witnesses on the ground that no public witness was examined by the prosecution and that only police witnesses were examined by the prosecution to support it's case. It had, thus, been argued that the testimonies of the aforesaid witnesses cannot be relied upon.
49. Be that as it may, it is well settled that non-examination of public witnesses is not detrimental to the case of the prosecution, on the ground that only police witnesses had been examined by the prosecution.
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50. In 'Safi Mohd. Vs State of Rajasthan', AIR 2013 Supreme Court 2519, Hon'ble Supreme Court of India had held that :-
"Further, the learned sessions judge has rightly accepted the testimony of the witnesses to prove the recovery of documents by assigning reasons and therefore, the same cannot be rejected merely on the ground that they are police officials who are members of raiding party and that the matters under the Official Secrets Act are very sensitive which required immediate action".
51. Thus, the touch stone on which the testimonies of the police witnesses is to be appreciated is only the fact that whether their testimonies corroborate each other in material particulars and not the fact that the public witnesses had not verified the credentials of the said testimonies.
52. In the present matter, the testimonies of police witnesses stand duly corroborated with each other as well as with their MLCs placed on record. There is no material contradiction in the same. Therefore, the said contention raised by Ld. Defence Counsel is baseless and without any merits.
53. Ld counsel for the accused persons had further argued that accused Iccha Ram, Rishi and Sabir were not apprehended at the spot and the said fact casts a doubt on the case of the prosecution. It had been further argued that no injured had been identified or described by the accused persons to the IO. Be that as it may, the non-apprehension of some of the accused persons at the spot does not lead to an inference that they had not participated in the alleged offence. It is but natural that the accused persons would want to flee away from the spot of occurrence just after the incident, in order to avoid their apprehension.
FIR No.31/2009PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.22 of 27
54. In fact, material witnesses have stated that PW8 Ct. Vikram had fired from his service pistol. Naturally then the accused persons would not have stayed at the spot considering the likelihood of their apprehension at the spot. Whether or not the injured persons had described the accused persons is also immaterial in light of the fact that the witnesses had duly identified the accused persons during their testimonies in the court.
55. Ld counsel for the accused persons had also argued that no TIP was got conducted. However, perusal of the testimony of PW8 Ct. Vikram shows that he knew almost all the accused persons prior to the incident thus, there was no requirement of conducting any TIP proceedings qua the said accused persons. He had also identified the remaining accused persons during his testimony. Therefore, non conducting of TIP proceedings earlier does not affect the case of the prosecution.
56. Ld counsel for the accused persons had further argued that only few persons were named in the Asal Tehrir i.e. accused persons Kamal, Subhash, Tarjan, Habib, Irfan, Islam. It had been argued that no other persons had been identified by the complainant/injured at the time of giving his complaint to the police vide Ex. PW6/B.
57. However the said contention raised by Ld counsel for accused persons is misconceived and as per the said complaint given by PW8 Ct Vikram i.e. PW6/B, he had stated that there were 8-10 boys sitting in the jhuggi No. S- 74/49, Harijan Camp, Khanpur and that one of the accused persons i.e. Sabir had incited the other said persons namely Islam, Jeetu, Deepu, Tarjan, to attack on the police party. In fact, as per the said police complaint, he had also stated FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.23 of 27 that said persons had raised an alarm and had called the other 'jhuggi' persons and had also attacked at the police party. He had also stated that a lot of crowd had gathered there and that he could identify those persons. All the material police witnesses had identified the said accused persons during their testimonies, even though all the said witnesses were not aware of the names of the accused persons at the time of making of complaint.
58. Furthermore, the testimonies of the said witnesses were also supported by the MLCs of the police witnesses placed on record. Perusal of the MLC of PW4 Ct. Hemant dated 05.02.2009, vide Ex.PW10/F, MLC of PW1 Ct. Mahender, Ct. Balram i.e. Ex. PW10/E and Ex. PW10/D dated 05.02.2009 shows that they had suffered 'simple injury' on the date of the incident. Moreover, perusal of the MLC dated 05.02.2009 of PW8 Ct. Vikram i.e. Ex. PW10/A shows that he had suffered 'grievous injury' on the day of the incident and PW7 Ct. Brahm Singh had also suffered grievous injury on the day of the incident as stated vide MLC, Ex. PW10/C.
59. However, Learned counsel for the accused persons had tried to assail the case of the prosecution on the ground that there was an alteration/cutting on the MLC of Ct. Brahm Singh as well as Ct. Vikram Singh and the nature of injuries suffered by them was changed from 'simple' to 'grievous'. Although, it is a matter of record that there was alteration in the nature of injury opined to have been suffered by the said injured persons by the examining doctor, however, perusal of the testimony of PW10 Dr. Kanika Chauhan shows that she had explained that as the X-ray reports were received later on and they showed fracture, the nature of injury was changed from 'simple' to 'grievous'. Thus, there is a plausible reason given by the examining doctor as to why the FIR No.31/2009 PS Ambedkar Nagar State Vs. Habib Khan Ors Page No.24 of 27 nature of injury was changed from 'simple' to 'grievous' and there does not appear to be any manipulation of medical record.
60. Learned counsel for accused persons had also argued that as per the testimony of the victim i.e. PW8, Ct. Vikram himself, infact, accused Islam had sustained bullet injury.
61. Section 96 IPC is reproduced as under :-
Section 96: Things done in private defence- Nothing is an offence which is done in the exercise of the right of private defence.
62. Be that as it may, no defence had been putforth by the accused persons to prove that any injury had been caused during the said firing. Even otherwise, as per section 96 IPC, it is well settled that right of private defence ensues in a case where any act is done in order to protect one's body or property and that no act done in private defence is liable for any kind of punishment. From the testimonies of the aforesaid police witnesses, it appears that the accused persons had attacked the police party and in defence, Ct. Vikram had fired in order to control the mob as well as to avert an injury, which was likely during the said attack.
63. Furthermore, the abovesaid facts having been established, the moot question that is now involved is whether the accused persons had formed an unlawful assembly and in pursuance of the same they had obstructed the aforesaid police officials from discharging their official function?
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64. Perusal of the testimonies of the police witnesses shows that although, they had testified that on the day of the incident at about midnight, they had reached Harijan Camp, Khanpur in respect of an information that was received qua the accused persons who were wanted in 'Hathi' murder case, however, it is a matter of record that no DD entry or FIR had been placed on record by the police witnesses to prove that they had received any such information or that they had reached the Harijan Camp in respect of 'Hathi' murder case. No allegations or material had been placed on record by the prosecution to bring on record the details of any case which was named as 'Hathi' murder case and even, the fact that it belonged to which PS had not been brought on record by the prosecution. In the absence of any such material being placed on record, the fact that the said police officials had reached the Harijan Camp, Khanpur in discharge of their public functions qua the said case could not be duly proved.
65. Thus, the fact that the said police officials had reached the place of occurrence in pursuit of accused persons of 'Hathi' murder case could not be duly proved by the prosecution as aforestated. Thus, the offences u/s 186/332/333 IPC are not made out against the accused persons.
66. Be that as it may, the police witnesses had categorically deposed that the accused persons had formed an unlawful assembly and had attacked them with 'danda', 'lathi' and stones and had inflicted simple and grievous injuries to the police officials as aforestated. Infact, due to apprehension of serious injury, PW8 Ct. Vikram Singh had to use the service pistol to fire and to scare the mob. There is no material contradiction in the testimonies of the aforesaid police witnesses and they corroborate each other in material particulars. Therefore, there is no reason to disbelieve their testimonies.
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67. As per Section 221 (2) Cr. P.C, an accused can be convicted in an offence which appears to have been committed from the evidence on record, even though, he may not have been charged with it.
68. Thus, in view of the aforesaid facts, the accused persons are hereby convicted for forming an unlawful assembly, u/s 143 IPC; for rioting u/s 147 IPC; for being armed with deadly weapon during rioting u/s 148 IPC; for being member of unlawful assembly and causing hurt and grievous hurt to the police witnesses (as above-mentioned) u/s 323 read with section 149 IPC and u/s 325 read with section 149 IPC.
69. Copy of judgment be given to the convicts free of cost.
ANNOUNCED IN OPEN COURT MANISHA Digitally signed by
MANISHA KHURANA
on 29.02.2024 KHURANA KAKKAR
Date: 2024.03.04
KAKKAR 16:59:22 +0530
(MANISHA KHURANA KAKKAR)
ASJ (FTC) - 01, SOUTH DISTRICT
SAKET: NEW DELHI
FIR No.31/2009
PS Ambedkar Nagar
State Vs. Habib Khan Ors Page No.27 of 27